Adeyanju v. Richardson
| Decision Date | 25 March 2020 |
| Docket Number | 11-cv-81-wmc |
| Parties | Jonathon ADEYANJU, Petitioner, v. Reed RICHARDSON, Warden, Stanley Correctional Institution, Respondent. |
| Court | U.S. District Court — Western District of Wisconsin |
Jonathan Adeyanju, Stanley, WI, pro se.
Maura FJ Whelan, State of Wisconsin Department of Justice, Warren D. Weinstein, Madison, WI, for Respondent.
Jonathon Adeyanju, an inmate at Stanley Correctional Institution, has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his July 24, 2006, conviction in the Circuit Court for Dane County, Wisconsin, on three counts of attempted first-degree intentional homicide while armed and three counts of endangering safety by use of a firearm. In a previous order of this court, Adeyanju was allowed to proceed on the following claims: (1) his trial counsel was ineffective for failing to seek a jury instruction on the lesser included offense of first degree recklessly endangering safety; (2) trial counsel was ineffective for not correcting the court's misstatement that he had pleaded guilty to a charge, which he had not; (3) trial counsel was ineffective for allowing admission of gang-related evidence in violation of the court's order; and (4) the trial court erred in admitting gang-related evidence. The State has filed a response to the petition and the parties have filed briefs on the merits. For reasons articulated below, the court must deny the petition.
The following facts are drawn from the Wisconsin Court of Appeals' decision, State v. Adeyanju , 2009 WI App 128, 321 Wis. 2d 239, 773 N.W. 2d 225 (Wis. Ct. App. July 16, 2009) (per curiam) (unpublished),1 and the record of the state court trial and post-conviction proceedings:
On August 9, 2005, two cars and a pickup truck stopped in front of a house on Perry Parkway in Oregon, Wisconsin. Several men dressed in black with their faces covered by bandanas jumped out of the vehicles and fired a hail of bullets up the driveway toward a group of people near the garage, then jumped back in the vehicles and sped off. Three of the people near the garage -- Chomrouen Um, Kimrien Chham and Samol Um -- suffered gunshot wounds.
The State charged petitioner Jonathon Adeyanju, his brother Jeremy Adeyanju, and nine other co-participants with three counts of attempted first-degree intentional homicide, in violation of Wis. Stat. 940.01(1),2 and three counts of endangering safety by use of a firearm, in violation of Wis. Stat. § 941.20(2)(a),3 all as parties to the crime. The alleged co-conspirators were friends and family members who also happened to be gang members, although they were not all in the same gang. Co-defendant Paul Mey and the Adeyanjus were "Bloods," and many of the other participants were "Crips."
Despite their rival gang affiliations, the State's theory of the case was that the shooters united to neutralize a threat by members of the "Chicago Bloods" against co-defendant Mark Mey and the Adeyanjus' younger brother, Terrance, who were both Crips. The Chicago Bloods had allegedly issued a "shoot on sight" directive against Mark Mey for stealing money and a gun from a high-ranking member known as "Fat Boi," and word of that threat had filtered down to the Meys, Adeyanjus and their friends. (Although it is unclear whether Fat Boi was also targeting Terrance Adeyanju, he apparently had been with Mark Mey when he stole Fat Boi's money and gun and, therefore, felt at risk as well.) Some of the individuals in or near the garage on Perry Parkway were Bloods, although Fat Boi was not among them.
Before trial, petitioner had accepted the State's offer to plead guilty in exchange for the State reducing the charges to three counts of being a party to the crime of first degree reckless injury, with no obligation that he testify on the State's behalf. However, he backed out of the deal just days before the trial was to begin. (Dkt. #12-35: 35.)
By the time of trial, seven of the 11 individuals charged in the shooting had entered plea agreements with the State. The remaining four defendants -- Mark and Paul Mey, petitioner and his brother Jeremy -- were tried jointly. Several co-conspirators testified to participating in the incident as shooters, placing petitioner at the scene with a gun. According to one of the co-conspirators, Lucas Rodriguez, the purpose of the shooting was "to get" the Bloods "before they get us," explaining that "get them" meant to try to kill them. (Dkt. # 12-19: 115: 14; 117: 21.)
The petitioner was represented at trial by attorney Edward Krueger. His defense, like that of the three co-defendants, was that (1) he was not at the scene of the shooting and (2) the State's witnesses were lying, either to curry favor with the State or to pin the blame on the co-defendants for the misdeeds of uncharged gang members. To this end, attorney Krueger asserted in his opening statement that "Jonathon Adeyanju wasn't there." (Dkt. #12-17: 79:13.) During the evidentiary portion of the trial, attorney Krueger focused on the absence of physical evidence connecting Adeyanju to the crime and the witnesses' motives to lie. Ultimately, none of the co-defendants chose to testify, including petitioner.
As a secondary defense, attorney Krueger attempted to establish through the testimony of alleged co-conspirators who had turned State's witnesses that the participants had no intent to kill anyone when they fired their guns in the driveway. Indeed, petitioner's counsel began his closing argument to the jury by highlighting this testimony and arguing that running a risk of hitting people does not rise to the level of intent to kill. (Dkt. #12-33: 47-48.) Counsel for petitioner's brother had earlier made a similar argument during his closing. (Dkt. #12-33, 10: 14-22.) Moreover, in an attempt to avoid the trap of appearing to make inconsistent arguments, petitioner's counsel clarified that he was making this argument "not with regard to Jonathon or any of the defendants here today," but rather with respect to the co-conspirators generally, whoever they were. (Id. ) His counsel then turned to argue that for Adeyanju there was no reliable evidence proving petitioner was even present at the shooting, pointing out other weaknesses in the State's case against him.
Before trial, Krueger prepared a jury instruction for first degree recklessly endangering safety as a lesser included offense of attempted first degree intentional homicide. A person is guilty of first-degree recklessly endangering safety when he endangers the safety of another person under circumstances showing utter disregard for human life. Wis. Stat. § 941.30. The crime of first-degree recklessly endangering safety is a lesser-included offense of attempted homicide in that it does not require intent to kill. However, the instruction was never discussed at the jury instruction conference, and attorney Krueger did not object to its absence from the final instructions.4 The jury found Adeyanju and the other three defendants guilty on all six counts.
After sentencing, Adeyanju filed a post-conviction motion for a new trial, arguing that attorney Krueger provided ineffective assistance by failing to request a lesser-included recklessly endangering safety instruction for each attempted first-degree intentional homicide count. At an evidentiary hearing on the motion, Krueger testified that he did not remember discussing the possibility of a lesser-included offense instruction with Adeyanju, but if had done so, he would probably remember it. (Dkt. #12-35: 37.) He also concluded having no strategic reason for failing to ask for the instruction; rather, he just "didn't think of it." (Dkt. #12-35: 15, 16.) Attorney Krueger further testified that Adeyanju did not specifically say that he wanted an all-or-nothing defense, and he admitted to counsel that he had been at the scene of the shooting. Counsel recalled, however, that Adeyanju was adamant that he not testify against his brother or anyone else. (Dkt. # 12-35: 22, 34.) Counsel also recalled that Adeyanju was scared of going to prison because he had crossed both the Crips and the Bloods, which were the two primary gangs in prison. (Dkt. #12-35: 34).
Absent Adeyanju taking the stand and explaining that he didn't intend to kill anyone, Attorney Krueger further explained that his only viable defense at trial was to argue that Adeyanju was not present at the shooting, emphasizing the lack of physical evidence tying Adeyanju to the scene. (Dkt. #12-35: 24.) However, as a "collateral" defense, attorney Krueger also attempted to establish through the testimony of the co-defendants that the participants had no intent to kill anyone when they fired their guns in the driveway. (Dkt. #12-35: 23.) At the hearing, Krueger also acknowledged that this lack-of-intent argument would have been consistent with the lesser-included offense of first-degree reckless endangerment instruction. (Dkt. #12-35: 15.) He also acknowledged that, heading into the trial, he thought Adeyanju was likely to be convicted on the attempted homicide counts. (Dkt. #12-35: 38.)
At the hearing, Adeyanju confirmed that he told Krueger he did not want to testify or go to prison. (Dkt. #12-35: 44-46, 50-51.) He also testified that he rejected the plea deal because his family was receiving threats. (Dkt. #12-35: 50.)
In denying relief, the state trial court found attorney Krueger was not ineffective for failing to ask for a lesser-included offense instruction for two reasons: (1) the jury was not reasonably likely to have acquitted Adeyanju on the attempted homicide charge and, therefore, counsel had no basis to request a lesser-included instruction; and (2) seeking a lesser-included instruction would have been inconsistent with Adeyanju's stated goal of obtaining a full acquittal. (Dkt. #12-35: 94-96.) On this latter point, the trial court found:
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